TMB & BNE's Policy on Deferred Disposition Arguably Unlawful
Despite the Texas Code of Criminal Procedure’s clear admonishment that a person’s successfully completed Deferred Disposition (available for Class C offenses in Municipal and Justice Courts only) cannot be used against them, the Texas Board of Nurse Examiners and Texas Medical Board continue to use such a record as a basis for disciplinary investigations and sanctions. I recently represented a client physician who had been given a deferred disposition for Public Intoxication -a Class C misdemeanor. Even though my client successfully completed their deferral requirements, the TMB nevertheless dug this fact up and used it to try and sanction the physician’s license. The Texas Board of Nursing is also guilty in this area. Despite the fact that an attorney / prosecutor and a criminal judge decide that a deferred disposition is warranted, licensing boards and administrative agencies routinely attempt to impose discipline anyway. Unfortunately, all too often unrepresented applicants and lawyers practicing outside of their scope fail to realize the remedies available to them.
Besides being bad policy and simply unfair, the practice is also arguably illegal under the Code of Criminal Procedure. The Code specifically states that once the complaint is dismissed upon the person’s successful completion of deferred disposition, “there is no final conviction and the complaint may not be used against the person for any reason.” Texas Code of Criminal Procedure § 45.051(e). Yet, the Medical Board and the Texas Board of Nursing frequently use such criminal history as the foundation of investigations, licensure actions and application denials. The statute’s prohibition against the use of the disposition goes to the very reason for having deferred disposition in the first place. It is designed to give the minor criminal offender a second chance at a clean slate. The policies of the Texas Medical Board and the Board of Nurse Examiners undermine this purpose and needlessly burden their license and discipline divisions with minor offenders that pose no danger to Texas patients. Ultimately when this predicament the licensee should seek the remedy of expunction which is availalable in almost all cases where a defferred disposition has been succesfully completed.
The Texas Board of Nursing & Minor Criminal Infractions
For the January 17-18, 2008 meeting of the Texas Board of Nursing (formerly the Texas Board of Nurse Examiners), attorney and general counsel Dusty Johnson presented an informational report on the Board’s policy in regards to minor criminal infractions and licensing. Of particular interest for current and future Texas nurses, the report provides a list of crimes which the Board has deemed to be too minor to warrant an investigation or disciplinary order in connection with a license application or renewal. Following the mandate of Chapter 53 of the Texas Government Code, the BON (BNE) recognizes that there are some forms of criminal conduct which are not sufficiently related to nursing to bring into question the licensee’s competency. Specifically, the listed criminal offenses are compared to the Board’s own Rule 213.28(i) concerning “youthful indiscretions.” Also of note is the finding that the Nursing Board now annually investigates approximately 3000 “positive hits” resulting from the standard FBI criminal background check required of all license applicants.
The criminal offenses considered not to be sufficiently related to the practice of nursing as to warrant an investigation or disciplinary action are:
- One misdemeanor DWI/DUI (not on probation)
- One misdemeanor offense of possession of marijuana
- Up to two misdemeanor theft by check
- One misdemeanor domestic/family violence
- One misdemeanor theft over $20 less than $250 (normally assoc. with shoplifting)
- One misdemeanor shop lifting
- One misdemeanor criminal mischief
- Misdemeanor graffiti
- One misdemeanor criminal trespass
- One misdemeanor disorderly conduct
- Up to two misdemeanor Public Intoxication
- Up to two misdemeanor Pan Handling
- Misdemeanor “loud noise” violations
- One misdemeanor Reckless Driving
- Misdemeanor minor in possession of tobacco
- One misdemeanor selling alcohol to a minor
- Failure to appear
- Vehicular molestation (slashing tires)
It has been my experience that the Board is oftentimes less than faithful to the above stated policy. In fact a discerning reader will note that the exemption of the above offenses is subject to the proviso that the Board does not deem them connected with patient care or the practice of nursing. In reality BNE attorney’s are all too ready to stretch any reading of what relates to the practice of nursing beyond all plausibility in their crusade to discipline nurses. For example, of the above, DWI convictions/deferred adjudication, domestic/family violence, and any form of theft are frequently the basis of Board of Nurse Examiners license investigations and disciplinary action. The Board’s mandate of protecting Texas medical consumers while also ensuring the licensing of much needed new nurses would be better served when the BNE decides to rigorously adhere to these stated policies.
Recent Developments with TPAPN & the Texas Board of Nursing
The Texas Peer Assistance Program for Nurses (TPAPN) has a long history of helping Texas nurses suffering from chemical dependency regain control over their lives and keep their license in the process. Nurses referred to TPAPN are able to confidentially undergo treatment and later return to nursing practice. Texas nurses should be aware of two new changes regarding the TPAPN program, one positive and one negative. For a description of TPAPN please see my law firm's web site or blog post from July 2007 entitled "What is TPAPN"
On the positive front, the TPAPN program has developed a new category of treatment named the Extended Evaluation Participation (EEP). To be eligible for the EEP program, the nurse must be involved in an isolated drug incident with no other history of substance abuse and, after professional evaluation, be found to have a low probability of chemical dependency. Participants are subject to one year of drug screening, with a minimum of 18 screens, and are allowed to continue work without any restrictions during this period. If there are no positive screens at the end of the year, the nurse is discharged from the program and their participation and the initial incident remain confidential. Yet, if there is a positive screen or the nurse fails to adhere to the screening program, the participant will be referred to the Texas Board of Nurse Examiners. This new category of treatment program should prove beneficial to the class of nurses who become involved in an isolated incident involving a chemical substance, maybe even inadvertently, and also are not actively abusing that substance and show a low risk of doing so in the future.
Continue Reading...Recently Adopted Rules: The Texas Board of Nursing
Effective May 2, 2007, the Texas Board of Nurse Examiners (recently renamed to the Texas Board of Nursing) adopted new language regarding rules §§ 214 and 215 governing Professional and Vocational Nursing Education. First published in the Texas Register on March 9, 2007, the rule change was designed to eliminate any misunderstanding as to the necessary student-to-faculty ratio required for an approved nursing school. The rule makes clear that by using preceptors, the maximum student-to-faculty ratio can be increased to 1:24 and for teaching assistants with a faculty member in a clinical setting, a ratio of 1:15.
More recently on June 22, 2007, the Board adopted numerous changes regarding Continuing Education requirements. Rule § 216 was modified so that a contact hour for continuing education requirements purposes was extended from 50 to 60 minutes. The Rule was also changed such that it is no longer mandatory for RNs to take a CE course on Hepatitis C.
More significantly, the Board has changed its policy on auditing and investigating nurses for compliance with CE requirements. Previously Board rules provided for a random audit of licensees for fulfillment of CE provisions. If no evidence of compliance was provided by the nurse an investigation was initiated which could lead to possible disciplinary action. Under the rule change, all licensees are required to submit evidence of CE compliance when seeking license renewal and if insufficient proof is provided the Board will simply deny their renewal application. This new rule is found at § 216.11.
In March, the Board adopted several amendments to §§ 213.28 and 213.33, two rules related to practice and procedure in disciplinary matters. Language was added to § 213.33 outlining the specific qualifications required of a Board appointed psychologist or psychiatrist who is charged with evaluating a licensee’s present fitness to practice nursing (§ 213.33(e)). The new provisions also permit the Board to request that the licensee be examined by a forensic psychologist or psychiatrist to determine the likelihood of future violations by the nurse and the level of danger they pose to the public (§ 213.33(f)).
Continue Reading...The Vanishing Informal Conference & The Texas Board of Nursing
Recently, the Board of Nurse Examiners has adopted two practices that besides being unlawful under the Board’s own rules and the applicable law cause great harm to the licensee, one even rising to an effective denial of due process. The first such practice involves the prosecution of disciplinary actions by filing formal charges internally against the nurse, without first offering the licensee a chance to present their case at an informal conference. Not only is this skipping of the informal process contrary to Nursing Board Rules, it also places an undue burden on licensees who are needlessly forced to shoulder increased legal costs and emotional strain.
Similar to many Texas state licensing boards, the Board of Nurse Examiners has adopted rules mandating that a licensee facing a disciplinary action be given the opportunity to participate in an informal settlement conference before the filing of formal charges. Pursuant to the Nursing Practice and Administrative Procedure Acts, the Board Rule regarding informal proceedings expressly states that the licensee be given an “opportunity to be heard.” Title 2 Texas Administrative Code § 213.20(b). Presumably, the rationale for this rule is to ensure that licensees and Board Staff have a chance to informally present their respective cases and hopefully achieve an agreed settlement. Such a procedure avoids encumbering the State Office of Administrative Hearings with an additional case when the matter is open to informal settlement. Likewise the costs of a formal SOAH proceeding are far greater for both the Board and the licensee when compared to an informal conference.
Even more egregiously, the BNE has in some cases decided to file formal charges, broadcast such filing on their website for public viewing, but refuse or wait many months to also docket the case at the State Office of Administrative Hearings. This effectively places the matter in administrative limbo as under the APA until the case is docketed, SOAH does not gain jurisdiction over the matter. This means there will not be a date for a formal hearing, an Administrative Law Judge will not be appointed to preside over the case, and parties can not effectively file motions or perform discovery. Title 1 TAC § 155.9(e). Such practice clearly violates SOAH’s Rules of Procedure which explicitly mandate that an agency pursuing a contested case “shall” docket the case. § 155.9. Moreover, a failure to docket the case after the filing of formal charges also contravenes the APA’s stricture that parties are entitled to a hearing on the merits. Texas Government Code § 2001.051. Simply put, the Board of Nurse Examiners has no legal authority to pursue this policy -in fact such practice violates the rules.
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Name Change for the BNE to The Texas Board of Nursing
The Texas Board of Nurse Examiners (BNE) became the Texas Board of Nursing (BON) on September 1, 2007 pursuant to House Bill 2426 otherwise known as the Sunset Bill for the Board of Nurse Examiners.
This should have no effect on the public other than some confusion as to why the agency continues to use its old stationary and have not updated their website. Arguably they will use the old stationary until it runs out and when the State gets around to it I imagine the website will be tweaked to reflect the new agency title –Budget Constraints.
Email addresses for all Board Staff have changed to the name.lastname@bon.state.tx.us format, but old emails should be active as well for at least another month. Whatever are they going to do about business cards for all of the employees? Let’s hope they don’t wait until they run out to order new ones.
Unfortunately, the name change means no relief for nurses involved in the disciplinary process or for those seeking declaratory orders. Board Staff, Board Policies, The Nursing Practice Act and Board Rules remain –the agency just has a different title.
Misuse of EtG Testing by the Texas Board of Nurse Exmainers & TPAPN
Recently I have had a flurry of cases where Texas nurses are accused of violating their Agreed Board Orders or their Texas Peer Assistance Program for Nurses (TPAPN) contracts due to positive Ethylglucuronide (EtG) tests in the 300 to 500 ng/ml range. In each case the Nurse denied consuming alcohol and corroborating evidence suggested they were sober; nevertheless, TPAPN expelled them from participation and a subsequent BNE investigation ensued against their nursing license.
This is clearly contrary to the admissibility of EtG testing in Court or as valid scientific evidence for the Board of Nurse Examiners to consider regarding these individuals knowing or intentional use of ethyl alcohol (ETOH). Please see my blog post: “What is EtG”. Moreover, it is a clear abuse of the power of both TPAPN and the BNE as they have decided their interpretations and determinations regarding EtG testing validity and use are superior to that of the Courts, SAMSHA and the scientific community at large.
Properly utilized, EtG testing can be an excellent screening tool to confront someone about a positive test. Oftentimes the initial confrontation will yield to an admission of a return to active drinking. However, when denied and all circumstances suggest that sobriety is in tact the EtG test in this range is insufficient in and of itself to prove alcohol consumption.
Continue Reading...What is TPAPN -The Texas Peer Assistance Program for Nurses?
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Established under Chapter 467 of the Health and Safety Code, TPAPN is a state-approved peer assistance program for Texas nurses. Operated by the Texas Nurses Association, TPAPN offers licensed nurses who are impaired by chemical dependency or mental illness an opportunity to undergo treatment and to safely return back to nursing practice -all under the protection of confidentiality.Available to Licensed Vocational and Registered Nurses who are diagnosed with substance abuse, chemical dependency, anxiety disorders, major depression, bipolar disorder, schizophrenia or schizoaffective disorder, program participation is an alternative to being reported to the Board of Nurse Examiners. A nurse suffering or who thinks they may be afflicted with one of the above diagnoses can either self-report or be referred to TPAPN by their employer. Completely voluntary, the program allows a nurse who has entered TPAPN to decline to participate or withdraw at any time. However, failure to adequately fulfill the TPAPN contract may result in a report being generated to the Texas Board of Nurse Examiners.
The self-proclaimed goal of the program is to provide an effective channel for recovery from chemical dependency and/or mental illness and effective re-integration back into nursing practice, thus protecting the public and providing incentives for professional accountability. Once in TPAPN, the nurse is assigned a case manager with extensive academic and clinical expertise in chemical dependency and psychiatric nursing. The program also includes advocates, LVN and RN volunteers who are there to support nurses throughout the program. Advocates create another layer of support for when a nurse’s case manager is not available.
Continue Reading...What is Ethylglucuronide -EtG Testing?
Ethyl Glucuronide (EtG) is a metabolite created by the body following alcohol consumption. Testing for this metabolite, typically via a urine sample, has become increasingly prevalent in the United States following its initial approval and use in Europe especially by agencies concerned with monitoring an individual for any relapse or return to active drinking. Many favor EtG sampling because it is a “direct” test for alcohol consumption in contrast to older, more traditional tests like Gamma Glutamyl Transferase or Carbohydrate-Deficient Transferrin which look for indirect signs of alcohol use such as liver damage. Further, while older tests generally only become positive following heavy alcohol use, EtG can be present in the urine after only a single drink. Moreover, EtG remains in the body and is detectable in urine three to five days after consumption
Unfortunately, EtG testing has several serious short-comings that limit its viability as an stand-alone objective marker of recent alcohol consumption and relapse. In the area of medical testing, a test is characterized by two qualities: sensitivity and specificity. Sensitivity measures the ability of the test to correctly identify those individuals who do have the condition of interest, here relapse, while specificity measures the ability of the test to correctly identify those persons who do not have the condition of interest. EtG testing has a high sensitivity, that is it has a high probability of correctly identifying as positive an individual who has recently relapsed. However, it also has a low specificity, that is it has a high probability of showing as positive a person who has not recently consumed alcoholic beverages. For example, research has shown that use of everyday items such as bug spray, mouth wash, various over-the-counter medicines, and hand sanitizer can produce positive results. Additionally, without further research, testing facilities have been unable to arrive at a consensus on the level of EtG that should be considered positive for a relapse. The high level of false positives seriously undercuts its status as a viable test for relapse and can easily lend itself to abuse by monitoring agencies such as the Texas Medical Board or the Texas Board of Nursing (Formerly known as the Texas Board of Nurse Examiners).
Continue Reading...DWI & Nursing License Discipline by the Texas Board of Nurse Examiners
Although initial arrests and convictions for Driving While Intoxictated (DWI) will not ordinarily result in the imposition of a disciplinary sanction against a Texas Nurse, they often do give rise to a stressful and searching investigation by Staff of the Board of Nurse Examiners. This result is due to, on the one hand, the legal fact that under the Nursing Practice Act, many DWI’s do not relate to the practice of nursing, and on the other, the practical reality of the Nursing Board’s zealous policing of what it deems unprofessional conduct (Texas Occupation Code § 301.452(b)(10). A knowledgeable attorney can best secure a positive outcome by ensuring that the correct standard is applied and not substituted by the Board’s personal opinion(s) on what constitutes unprofessional or dishonorable conduct.
Under the Nursing Practice Act the Board can take disciplinary action against a licensee if a nurse has been convicted or placed on deferred adjudication for either a felony or a misdemeanor involving moral turpitude. (Texas Occupation Code § 301.452(b)(3)). An individual’s first two DWI’s are misdemeanors under the Texas Penal Code with the third and all those thereafter rising to felonies. From a legal standpoint, however, the Nursing Board’s broad discretion to take disciplinary action under the Nursing Practice Act is limited by the Texas Occupation Code’s prescription that discipline can only be imposed if the felony or misdemeanor “directly relates to the duties and responsibilities of the license holder.” (Texas Occupation Code § 53.021). In deciding this issue, the Board must weigh certain factors such as “the relationship of the crime to the purposes for requiring a license to engage in the occupation” and “the relationship of the crime to the ability, capacity, or fitness required to perform the duties and discharge the responsibilities of the licensed occupation.” (§ 53.022)
Board Staff’s policy, however, is to initiate an investigation into a nurse’s fitness and character if they have two or more criminal arrests for alcohol or drug related offenses in a lifetime. Board Staff does not seem to differentiate between arrests, deferred probations, regular probations, dismissals and final convictions with respect to opening an investigation. Once the investigation is initiated, Board Staff tries to force the nurse into a forensic psychological evaluation and polygraph test in an effort to determine if the license holder suffers from a DSM IV diagnosis of chemical abuse or dependence. Unfortunately, any other conduct or psychiatric disorder discovered through this battery of questionable discovery is then utilized to stipulate the nurse’s registration. Board Staff is successful in this less than admirable procedure as many nurses think they do not need or can not afford an attorney. Competent, experienced counsel however, can put a halt to this process and mount a successful defense against Board Staff’s position that all criminal conduct is unprofessional and therefore relates to the practice of nursing. Moreover, a knowledgeable attorney will know how to circumvent Board Staff’s insistence that the Nurse undergo an evaluation with a “Board Approved” expert and then submit to the rigors of a “qualifying” polygraph examination.
Continue Reading...Timely License Renewal Under the Texas Administrative Procedure Act
The Texas Administrative Procedure Act (APA) offers a ready incentive for a licensee such as a doctor or nurse to seek prompt renewal of their license if they face or expect to face a disciplinary action before their respective state licensing board. Chapter 2001.054 of the Texas Government Code (The Administrative Procedure Act) provides a special rule when the professional’s license renewal is contested by the applicable administrative agency and such agency is required to provide timely notice and an opportunity to be heard, two conditions that apply to virtually every disciplinary action. When such a licensee applies for renewal, their existing license automatically remains in effect until their application has been finally determined by the state agency. Further, if the state agency decides to deny or limit the terms of the new license, the professional’s existing license does not expire until the last day for appealing the agency order or other date set by the reviewing court, whichever is later.
Thus a doctor who expects the Texas Medical Board to deny the renewal of their professional license or to take other disciplinary action against them should timely apply as they will still retain and be able to practice under their existing license. The same situation applies to a nurse facing disciplinary action by the Texas Board of Nurse Examiners, an optometrist in front of the Texas Optometry Board, a dentist before the Texas State Board of Dental Examiners, and other licensed medical and non-medical professionals. Continue Reading...Expunctions: Disclosure, Discipline & The Texas Board of Nurse Examiners
The Texas Code of Criminal Procedure Chapter 55, Article 55.04 forbids a State Agency from using, questioning an individual about, or in any way releasing information about an arrest that has been expunged pursuant to the provisions of Chapter 55. Moreover, Tex. Code Crim. Proc. § 55.03 provides that the effect of an Expunction Order in a licensure disciplinary proceeding, including the application process, allows for the individual to deny the arrest and the existence of the Order of Expunction. However, the Texas Board of Nurse Examiners (BNE) requires that a licensed nurse or nursing license applicant disclose the existence of the arrest on renewals and initial license applications. It is undetermined if they seek to utilize these arrests against the nurse in a disciplinary proceeding or as a basis for the denial of a license. However, the mere thought that the registration renewals or applications ask about information which if utilized would subject members of Board Staff to criminal sanctions raises a few alarming concerns.
BNE & Criminal History -Public Image or Public Safety?
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The Board of Nurse Examiners for the State of Texas received authorization and funding from the legislature to undergo complete criminal history and background checks on every nurse in the State of Texas. Accordingly, every LVN and RN in Texas will be required to submit a fingerprint card to the BNE over the next ten years. The cards will be submitted to the FBI and the Texas Department of Public Saftey for verification and accuracy of the Nurse's identity and criminal history. Ten percent of nurses will be required to undergo this scrutiny per year until all licensees have been evaluated. This has created a marked rise in investigations and disciplinary orders. There are several inherent problems with this process however, and nurses should seek advice from an experienced lawyer before they accept a proposed disciplinary sanction that will mar their record indefinitely.
To begin, the BNE did not acquire jursidiction over deferred adjudications until September 1, 2005. Staff of the Board however, is investigating offenses that resulted in deferred adjudication probations and dismissals that are more than twenty years old. This week alone I received calls from two LVNs who had just such misdemeanor criminal records and were being investigated by the BNE. Board Staff, including the Attorneys, readily admit they did not and do not have substantive jurisdiction over the criminal history, but maintain they are concerned about the conduct or the psychiatric disorder that may be reflected by the offense and the behavior. The fact is both of these nurses have renewed their licenses for the last twenty (20) years and have never been required to reveal this history. Additionally, both have practiced nursing without incident during this period and each has had exceptional performance appraisals from all employers. Why then is the BNE delving into these issues when all of their investigators have such large case loads that they can not adequately work up a case? The answer is simple -Public Image.
Continue Reading...Surrendered Licenses & OIG Medicare Exclusions
Consider this scenario: You lose your medical (nursing, pharmacist, etc.) license to practice, so you move states in order to escape the ramifications of a surrendered or revoked license.
Unfortunately, the ramifications of your lost professional registration may follow you in the form of an exclusion. An individual subject to an exclusion is significantly limited in her ability to work in the health care profession nationwide. The purpose of the exclusion remedy is to protect beneficiaries of Federal health care programs from incompetent practitioners and from inappropriate or inadequate care. In the broadest sense, a section 1128 exclusion prevents individuals and entities from participation in Medicare, Medicaid and State health care programs. However, this does not affect your rights to participate as a beneficiary (i.e., if you break your arm and Medicaid normally pays, then you can still collect these benefits).
According to 1128(b)(4) of the Social Security Act, an individual may be excluded from participation in any Federal health care program if that person’s license was revoked, suspended, or otherwise lost, or because it was surrendered while a formal disciplinary proceeding was pending before an authority and the proceeding concerned the individual's professional competence, professional performance, or financial integrity. The Office of Inspector General (“OIG”) will generally send you a letter informing you that you may be excluded from health care programs including:
- Medicare
- Medicaid
- Veterans Administration
- TRICARE, etc.
The Social Security Act allows the OIG to exercise discretion when deciding whether or not to exclude individuals from participating in Federal health care programs. Even if the OIG decides to exclude you, they also have discretion to determine the length of the exclusion. Of course there are guidelines and considerations, such as:
- the nature of the act that gave rise to the exclusion;
- length of license suspension;
- criminal history, and;
- the availability of other sources of the type of health care services furnished by the individual.
The Polygraph Test: Just Say No to the BNE
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The Board of Nurse Examiners for the State of Texas (BNE) evaluates applicant's for RN and LVN licensure per the Nursing Practice Act and the Nursing Board's Rules found in 22 Texas Administrative Code Sec. 217.11 et al. Per the Nursing Practice Act, Board Staff has the ability to investigate an applicant's character and fitness to practice Nursing based on indications that an applicant may lack the "good professional character" to be a licensed nurse.
In an effort to weed out poor or marginal applicants Board Staff notifies individuals that due to their criminal, work, mental health or drug use history they must Petition the Board's Executive Director for a Declaratory Order to practice nursing. Then Board Staff (through the Executive Director) requests that they undergo a forensic psychological evaluation with a polygraph test component. Although it is not explicitly stated in the request the implication is that a failure to submit to the "illegally requested" tests will result in a denial of the application for a license.
Although not legally authorized, Board Staff requests these evaluations for crimes that are often thirty (30) years old and that in and of themselves do not relate to the practice of nursing. Moreover, the forensic evaluation and polygraph tests are often nothing more than a fishing expedition to determine if a person has done something in their past to render them ineligible. Oftentimes what is dicovered is then used as the basis for denial even though it is often not legally admissible evidence. The simple truth is JUST Say No to the polygraph and call an attorney.
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